State of WV v. Holliday
Annotate this CaseSeptember 1992 Term
___________
No. 20929
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STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
v.
ELIZABETH HOLLIDAY,
Defendant Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of Raleigh County
Honorable Robert A. Burnside, Jr., Judge
Criminal Action No. 90-F-500
REMANDED WITH DIRECTIONS
_______________________________________________________
Submitted: September 16, 1992
Filed: November 12, 1992
Teresa A. Tarr
Senior Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
C. Cooper Fulton
Kanawha County Public Defender Corporation
Charleston, West Virginia
Attorney for the Appellant
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
"A criminal defendant has the right, absent some
necessity relating to courtroom security or order, to be tried free
of physical restraints." Syllabus point 3, State v. Brewster, 164
W.Va. 173, 261 S.E.2d 77 (1979).
Per Curiam:
The defendant in this proceeding, Elizabeth Holliday, was
arrested and charged with two counts of aggravated robbery. She
was tried by a jury and convicted on both counts. On February 15,
1991, the Circuit Court of Raleigh County sentenced her to
concurrent sentences of twenty years and fifteen years in the State
penitentiary on the convictions. In the present appeal, the
defendant claims that the trial court erred by forcing her to
appear in shackles during her trial and in failing to provide her
an evidentiary hearing on the question of whether such shackles
were necessary. After reviewing the record filed and the questions
presented, this Court agrees that the trial court failed to conduct
an adequate evidentiary hearing on the necessity of trying the
defendant in shackles and remands this case for such a hearing.
The defendant was charged with the separate aggravated
robberies of two retired men, Dallas Lilly, a retired janitor who
lived in Raleigh County, and Oscar Lucas, another sixty-five-year-old retired man who also lived in Raleigh County. Evidence adduced
by the State during the defendant's trial showed that during the
night of December 2-3, 1989, the defendant entered the trailer of
Dallas Lilly while he was asleep. Mr. Lilly woke up and recognized
the defendant, although he did not know her name. He asked her
what she was doing, and she asked him if he wanted a date and
started to take off her clothes. He indicated that he did not want
a date and told her to leave him alone. He got up and attempted to
move away. Instead of letting him move away, according to the
State's evidence, the defendant started frisking him, shoved him
down, and took his billfold. She then left his trailer, ran across
a field, and got into a waiting car. After the defendant had left,
Mr. Lilly noticed that, in addition to his billfold, his watch was
also gone.
On the following day, Mr. Lilly went to a local bar and
grill and ascertained that the defendant's name was Elizabeth
"Sissy" Holliday.
The defendant was subsequently arrested for the robbery
of Mr. Lilly, and during an inventory search performed during the
arrest a watch was discovered which Mr. Lilly subsequently
identified as his watch which had disappeared from his trailer.
During her trial, the defendant introduced alibi evidence
which indicated that she was not at Mr. Lilly's trailer at the time
of the crime charged and that she could not have committed the
crime.
Evidence adduced by the State relating to the second
aggravated robbery charge showed that between 4:00 and 4:30 a.m. on
December 3, 1989, the defendant and one Henrietta Miller went to
the home of Oscar Lucas. Mr. Lucas let them in because the two
women were acquainted with his son and had been in the house
before. According to the State's evidence, while Henrietta Miller
went into the kitchen to get some coffee, the defendant sat down
with Mr. Lucas and asked to borrow $2.00 to buy some gas. Mr.
Lucas gave her the change that he had in his pocket and told her
that that was all the money he had. She then asked him to take his
billfold out and open it up. According to the State's evidence,
when he refused the defendant knocked him down on the couch and
stood on his left hand. A moment later, Henrietta Miller, who had
apparently entered the room, and who was standing beside the coffee
table, held his right hand down. The defendant then hit him above
the eye with an object and reached into his pocket and took his
wallet.
The defendant was also arrested for aggravated robbery
for this incident, and an inventory search performed at the time of
the arrest produced two telephone credit cards in the name of Oscar
Lucas.
During trial the defendant admitted that while she was at
Mr. Lucas' home at the time of the crime charged, contrary to his
story, she was involved in an altercation with him. She indicated
that she was very angry, that she didn't know what she was doing,
and that she, in effect, did not rob him.
Prior to the commencement of the defendant's trial, a
question arose as to whether the defendant, who had apparently been
involved in a violent altercation in jail, should be shackled
during trial. The State took the position that it was indifferent
as to the use of shackles and would defer to the bailiff's judgment
as to whether he could handle any potential problems. The trial
judge, to resolve the question, conducted a "hearing." At the
"hearing" no witnesses were called and the sole evidentiary
development consisted of discussion between the judge, the
attorneys, and the court bailiff. During the discussion, the
following colloquy occurred between the court and the court
bailiff:
THE COURT: Mr. Vest, as the person in charge,
as bailiff in charge of security within the
courtroom, what, what feelings do you have as
to your abilities to maintain security in the
absence of restraints of the defendant?
THE BAILIFF: All I know is what they have
told me at the jail. There was, I think last
Wednesday, they had an incident that took
about three of them to get her settled down
involving Ms. Holliday.
The court, following this colloquy, ordered that the
defendant wear leg irons during trial, except when she was
testifying. The court noted that for the most part the restraints
would not be visible to the jury because the restraints could not
be seen when the defendant was seated at counsel table. The court
also provided that prior to the defendant's testimony, the shackles
were to be removed out of the jury's presence and that when the
defendant's presence was necessary during bench conference, the
jury could be dismissed.
After ruling that the defendant was to be tried in
shackles, a jury was impanelled and trial was conducted. During
trial the fact that the defendant was in shackles was rather
clearly brought to the jury's attention.
In the present proceeding, the defendant claims that the
trial court erred in requiring her to appear for trial in shackles
and that the trial court also erred in failing to conduct a true
evidentiary hearing on the question of whether shackles were
necessary.
In State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77
(1979), this Court discussed the use of physical restraints on a
criminal defendant during that criminal defendant's trial. The
Court noted that there was authority supporting the position that
a criminal defendant had the right, absent some necessity relating
to courtroom security or order, to be tried free of physical
restraints. The Court concluded that that principle was the law in
West Virginia. In syllabus point 3 of Brewster, the Court
summarized the conclusion as follows:
A criminal defendant has the right,
absent some necessity relating to courtroom
security or order, to be tried free of
physical restraints.
The Court proceeded to note that there were a number of factors
which could justify the use of physical restraints, and in
discussing these factors, the Court cited with approval the list of
determinative factors discussed in "The A.B.A. Advisory Committee
on the Criminal Trial, Standards Relating to Trial by Jury
(Approved Draft 1968) at 96 n.9." Those factors were: (1) The
seriousness of the present charge, (2) the person's character, (3)
the person's past record, (4) past escapes by the person, (5)
attempted escapes by the person, (6) evidence the person is
planning an escape, (7) threats of harm to others, (8) threats to
cause disturbance, (9) evidence the person is bent upon self-destruction, (10) risk of mob violence, (11) risk of attempted
revenge by victim's family, (12) other offenders still at large.
In the later case of State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981), the Court indicated that the factors set out by
the ABA Advisory Committee were relevant considerations in
determining whether a defendant should be tried while under
physical restraint.
In State v. Brewster, supra, the Court noted that no
adequate record had been made relating to the use of restraints in
Brewster's case and ruled that it could not be presumed from a
silent record that the use of restraints was appropriate. The
Court stated:
We do not believe, however, that the failure
to develop a record of the necessity for
physical restraints requires an automatic
reversal of the defendant's conviction. The
issue to be resolved is whether sufficient
reasons for the use of the handcuffs existed.
If a manifest necessity existed for their use,
this would outweigh, from a policy standpoint,
their prejudicial effect.
State v. Brewster, supra at 182, 261 S.E.2d at 82.
The Court noted that where the question of whether
physical restraints should be used had arisen in other courts, the
matter was disposed of by remanding the matter for a hearing to
determine whether restraints were necessary, and not resolved by
automatically reversing the defendant's conviction and granting the
defendant a new trial. The Court concluded that such disposition
was appropriate in West Virginia. The Court, therefore, remanded
Brewster's case to the circuit court with directions to the circuit
court that it conduct an evidentiary hearing to determine if there
were sufficient facts to warrant trying the defendant in
restraints. The Court further stated that if, under the standards
set forth in the Brewster opinion, the circuit court found that the
defendant should have been so tried, the conviction should be re-entered. If, on the other hand, the court found that the evidence
was insufficient to support trial in restraints, a new trial should
be accorded to the defendant.
In the case presently before the Court, after examining
the record it is clear that the trial court did not conduct a full
evidentiary hearing on the question of whether the defendant should
be tried in shackles. Although the bailiff communicated hearsay
information indicating that the defendant had been involved in an
altercation in the jail, it is clear from an examination of the
record that the trial court did not take sworn evidence about this
altercation or about the other factors set out in the ABA standards
cited above. Although the evidence at the subsequent trial of the
defendant suggested that she had been involved in crimes of
violence and also suggested that she had a past record involving
some violence, the Court does not believe that the evidence was
fully and meaningfully developed in the context of the necessity of
trying the defendant in shackles.
In line with the thinking discussed in State v. Brewster,
supra, the Court does not believe that the failure of the trial
court to conduct a full evidentiary hearing necessarily requires
that the defendant be granted a new trial. The Court, however,
believes that the case should be disposed of as the Brewster case
was disposed of.
The Court, therefore, remands this case to the Circuit
Court of Raleigh County with directions that the circuit court hold
an evidentiary hearing to determine if there were sufficient facts
to warrant the trying of the defendant in shackles. If, under the
standards discussed in State v. Brewster and State Peacher, supra,
the circuit court finds that the defendant should have been so
tried, the conviction of the defendant shall be re-entered. If the
circuit court finds that the evidence is insufficient to warrant
the trial of the defendant in shackles, a new trial should be
afforded to the defendant.See footnote 1
Remanded with directions.
Footnote: 1In reaching the decision in this case, the Court is mindful of its different ruling in the factually similar case of State v. Rood, No. 21024 (W.Va. Oct. 8, 1992). In Rood, the Court concluded that there was overwhelming evidence of Mr. Rood's guilt and that under the circumstance the fact that Mr. Rood appeared in prison attire could not have adversely affected the jury in its deliberations. The Court believes that the case presently under consideration is factually different from the Rood case since the evidence relating to the defendant's involvement in the crimes charged was contradictory and since the credibility of witnesses, and, in particular, the credibility of the defendant herself, was critical to the jury's verdict.
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